If you had asked me 5 years ago in what situation would an American Senator say that, I would have imagined a severe breakdown in our legal and political order.

Why would someone professing to care about the Constitution only want to know that an American has to be charged with a crime before he's blown away by something called a drone. Where's the right to counsel? Where's the proof beyond a reasonable doubt at trial? And if the sentence is death, isn't it cruel and unusual to suddenly bomb a man out of existence?

The Senator sounds as though he is begging for the last shred of pretense that we have a Constitution.

If you had asked me 5 years ago to imagine a situation in which a Senator would say that, I would have imagined a severe breakdown in our legal and political order.

And we have had a severe erosion in our legal and political order. It's just that it is becoming more apparent, and egregious, every day. And at this point the erosion has occurred across administrations and congresses controlled by both parties, so the partisan bullshit is now exposed as just that.

Rule of law in the sense of civil liberties and individual privacy/protection is declining (in another sense rule of law has become rule of lawyers as Nial Ferguson says). It started to decline after Bill Clinton's (unnecessary and over the top) impeachment. It built up the animosity between the two parties that we see today in an all time high. Then came the 2000 election without a resolution from the voting public but from the SC. Whatever the legal merits of that case, it left Democrats hanging a second time. Then came 9/11 which confused the hell out of everybody. Both parties could not intelligently deal with it and Bush started the unnecessary wars in Iraq (but my hubby a moderate thought that was the right thing to do because they had to go whack some Islamo country and Iraq was as good a weak target as any other). After two wars and no intelligent response to global terrorism and a weakening economy, Republican brand was permanently damaged and then we got Obama who was never what they sold him to be, not even close. So rule of law? yeah what of it? Drones everywhere and anywhere. What of it? Liberals got their guy in the WH and are playing deaf, dumb, blind and damaged Republicans are, yeah, damaged.

Cut him some slack, lady. It's not like he's some stinking lawyer; before he was a senator he worked for a living. Rand Paul is, I think, saying that the present administration, the one you voted for because you wanted the Democrats to "own" the War on Terror, isn't even applying the fig leaf of a military tribunal to the use of Hellfire missiles fired from drones at American civilians, so Ex Parte Milligan doesn't apply.

Rand Paul's filibuster was called for precisely because not only is there not even the check of a military tribunal, but the administration was suggesting that the decision to apply lethal force from a drone could be made by someone below the president's level.

You are interpreting his sentence too literally.. if he had said no drone attacks on Americans on American soil period, and absolutely not and never without due process, would have been a better sentence (still a bit strange because it leave the possibility of blowing an American up after due process). As I said before, he is not a lawyer.

Eric Holder never said it would be "unconstitutional" to deprive a citizen of life without due process. He said it would be "inappropriate" in his exchange with Ted Cruz. His oath of office does not require him to uphold "propriety;" it requires him to uphold the "constitution." Holder's answers are always squishy. His letter to Paul denying the president the "right" to kill Americans is the closest he's ever gotten to appealing to actual law rather than discretion.

"You are interpreting his sentence too literally.. if he had said no drone attacks on Americans on American soil period, and absolutely not and never without due process, would have been a better sentence (still a bit strange because it leave the possibility of blowing an American up after due process). As I said before, he is not a lawyer."

You are missing the point of this post!

And if you think Rand Paul doen't have lawyers on his staff helping him with this material...

I was happy to see Paul, Lee, and Cruz stand up on the Senate floor and unleash an intraparty debate on foreign policy and civil liberties. Under the circumstances, I forgave the occasional imprecision or hyperbolic statement. But this op-ed is disappointing.

rhhardin said... I don't see the problem. The war power of the President is its own deal, and an executive power.If the President blows away an American without some appropriate circumstance then Congress impeaches and removes him.Voters in turn remove congress.

"While I don't want to put words into Rand Paul's mouth, I'm guessing that he meant those other legal obligations had already been met."

How would that work and tie to a drone attack? I can't even picture it. We're imposing the death penalty by dropping a bomb on someone who isn't even currently incarcerated? What are you talking about?

Paul wrote "charged with a crime." If we're talking about a drone, we mean someone who hasn't been taken into custody.

If you'd kill a person in custody with a drone... no one is talking about that!

While I do have various objections to both the Obama drone-kill program and his death warrant program, by historical precedent, it is clearly constitutional for American citizens to be killed without being charged with a crime.

In fact, there are a few hundred thousand such precedents. We have the precedent of a president sending military troops into U.S. territory and shooting Americans, killing Americans and destroying cities by artillery bombardment (the historical parallel to drones), and blockading American ports to starve people. That these Americans had claimed to have seceded from the Union to form their own Confederacy does not alter the fact that they legally remained Americans, as insisted by the president himself at the time. President Lincoln very much provided the precedent of the constitution providing him legal authority to kill Americans without criminal charge.

Ann Althouse said..."While I don't want to put words into Rand Paul's mouth, I'm guessing that he meant those other legal obligations had already been met."

How would that work and tie to a drone attack? I can't even picture it. We're imposing the death penalty by dropping a bomb on someone who isn't even currently incarcerated? What are you talking about?

Paul wrote "charged with a crime." If we're talking about a drone, we mean someone who hasn't been taken into custody.

If you'd kill a person in custody with a drone... no one is talking about that!

rhhardin is entirely correct. There are already Constitutional checks on the President's power. The point is not that we should let the President start drone striking Americans so the Congress can respond. It is that the recourses available in the other branches of government make it improbable in the extreme that any president would ever attempt such an action.

Getting Holder to list out all the hypothetical scenarios in which the administration will and won't use the military power is not the answer.

Yesterday, John McCain was attacking Holder for trying Al Qaeda suspects in civilian counts. That is a worthy line of attack on the administration.

And if you think Rand Paul doen't have lawyers on his staff helping him with this material...

I did think about that -- why the lawyer staff didn't intervene or help write this up. My speculation is that it is all happening too fast for Paul and he wants to ride the wave and did not consult to get his language right. Even on the floor it was Ted Cruz who provided the legal language and expression to Paul's filibuster.

Let me get this right. This Administration wants to play cutesy about arbitrarily raining death from above on the American public in contravention of all existing rules and standards and yet Senator Paul is the target of criticism because he didn't state his constitutional case properly. "Other than that Mrs. Lincoln, how was the play?"

The Professor had a thought about Drones being the executioners used on condemned men and women. She seems stuck on the 14th Amendment's concept of due process before execution...you know, with old fashioned jury trials and effective assistance of counsel as a citizen's right.

Think about the newest mini-drones, the size of birds carrying small bombs, they can be flown from the Warden's Office across the GreenMile to Death Row and boom! Obama does deeds like that all of the time, and with with the big ones.

The Constitution is a 225 year old act of rebellion from the Europe's Kings and Queens using powers of a Roman Empire like anointed aristocracy empowered by the old gods of Greece and Rome.

Why would someone professing to care about the Constitution only want to know that an American has to be charged with a crime before he's blown away by something called a drone. Where's the right to counsel? Where's the proof beyond a reasonable doubt at trial? And if the sentence is death, isn't it cruel and unusual to suddenly bomb a man out of existence?

This is the problem with treating The War on Terror like a common crime and saying it should be handled like we handle common everyday crimes.

It's a War Powers issue, and War Powers are not governed by due process.

Gutless wrote:Let me get this right. This Administration wants to play cutesy about arbitrarily raining death from above on the American public in contravention of all existing rules and standards and yet Senator Paul is the target of criticism because he didn't state his constitutional case properly. "Other than that Mrs. Lincoln, how was the play?"

Is that what the president's administration really wants to do?C'mon.If it were a War Power (which it is), then the president couldn't justify using a drone on a common criminal unless that common criminal were in effect waging war on the US.

Rusty wrote:Paul wrote "charged with a crime." If we're talking about a drone, we mean someone who hasn't been taken into custody.

When 9/11 was occuring the Bush administratino sent out fighter jets to intercept Flight 93and blow it out of the sky. If the President could send out jets in such a situation why couldn't he use a drone strike as well or instead of?Would those Americans killed on the plane not be deprived of due process, and killed without trials?

Let's say Paul wrote"...killed by a drone without even being charged with a crime.". He didn't write that of course but I take it that's what he meant. Being accused and then charged is just the first step (excepting search and seizure) in all the constitutional guarantees with which you'd have him lard his sentence.

Rand is trying to say that such droneing doesn't even satisfy the first test of our constitutional rights, much less any of the others.

Wanting him explicitly acknowledge much of the rest of the bill of rights or to suggest that he was saying that charging the target was a sufficient justification for his droning is pedantry, not analysis.

He is protesting that our Constitution is in shreds due to this evil man.

The nationalization of private enterprises with the use of the government to destroy businesses that do not support the party in power.

The arming of drug cartels by the Justice department which resulted in the deaths of American Law enforcement personal.

The refusal to enforce laws against voter intimidation because the miscreants were black and black people or Democrats can not commit voting rights offenses.

The imprisonment of a filmmaker on a pretext when the exercise of his First Amendment rights offends some towel heads and to use as a handy excuse to cover criminal negligence in the murder of an ambassador.

The attack on religious institutions by forcing them to violate the sacramental doctrines and provide birth control and abortion services as dictated by the government in violation of the right to religious freedom.

Now they are murdering American Citizens on the streets of our country on a whim. Without a trial. Without a conviction. Without an indictment. Without a check or a balance.

The constitution means nothing to this evil man and his minions and apologists.

Here is Abraham Lincoln, the Great Emancipator, and great Republican president on his deciding to get rid of habeus corpus because of the fight with the South:

Soon after the first call for militia, it was considered a duty to authorize the Commanding General, in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus; or, in other words, to arrest, and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety. This authority has purposely been exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it, are questioned; and the attention of the country has been called to the proposition that one who is sworn to “take care that the laws be faithfully executed,” should not himself violate them. Of course some consideration was given to the questions of power, and propriety before this matter was acted upon. The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen’s liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution that “The privilege of the writ of habeas corpus, shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it,” is equivalent to a provision — is a provision — that such privilege may be suspended when, in cases of rebellion, or invasion, the public safety does require it. It was decided that we have a case of rebellion, and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself, is silent as to which, or who, is to exercise the power, and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion."

So if we had drone strike capability in the Civil War, would Abe be able to use said technology to help quell a rebellion? Yes to scorched earth and suspending habeus corpus, but somehow no to a drone strike? And remember the Civil War involved Americans fighting Americans.

And the Obama administration has not actually used drone strikes on Americans on our soil. Yet.I'm just pointing out that if a president can suspend habeus corpus, why would he somehow not be able to drop a bomb? But note, it would take something along the lines of a civil war, or an invasion (or a terrorist attack that targets the pentagon) for something like this to even be considered. I think we're all safe drinking coffee at Starbucks for the moment

And that's not even me saying that therefore Obama isn't still a douche in most regards. But I doint want Republicans to get in bed with Code Pink, or anyone who makes an argument that would be music to Code Pink's ears when it comes to national security.Ron Paul was that lunatic. Rand Paul seems more measured, and yet here he is going down that road.

It may have made for good political theater, and the fact that so few democrates actually stood with him does highlight THEIR hypocricy. But that doesn't mean that Paul isn't scare mongering about an issue that has never occured. and will probably not occur.As Bill Kristol noted:Will it ultimately serve him well to be the spokesman for the Code Pink faction of the Republican party? How much staying power is there in a political stance that requires waxing semihysterical about the imminent threat of Obama-ordered drone strikes against Americans sitting in cafés?

How would that work and tie to a drone attack? I can't even picture it. We're imposing the death penalty by dropping a bomb on someone who isn't even currently incarcerated? What are you talking about?

Come on. Cops have the right to put down people when they pose a serious threat to those around you. In this case, the cop becomes cop, judge, jury, and executioner. It makes sense. I don't understand the beef about drones. Note, I don't like it, but I don't like surveillance cameras either, though by one line of reasoning it allows the cops to do their job cheaper and faster. But drones are a step in a direction we've already gone down.

What I don't like is the president having the power to use the military on US soil. It hasn't been done often (e.g., civil war, national guard to suppress riots, etc.).

So seriously, don't merely say "Drones" are unconstitutional. Why should they be? Something else is going on here that intuitively is scary. I think it is only being entertained because there is a big hole in our constitution, and the terrorists walk through it.

If you had asked me 5 years ago in what situation would an American Senator say that, I would have imagined a severe breakdown in our legal and political order.

Five years ago, I wouldn't have imagined a President attempting to justify murdering Americans with no charges filed on American soil. I'd have also not imagined civil libertarians not giving a shit about that.

Learn something new every day.

The Senator sounds as though he is begging for the last shred of pretense that we have a Constitution.

It is only a matter of time before there will be a "crisis" in which a government agency will use drones to attack an American on American soil. Probably not while sipping a latte at Starbucks, but it will happen eventually. When authorities were searching for Chris Dorner in CA the cops opened fire on two different innocent civilian vehicles simply because the vehicles resembled Dorner's. Where was their due process?

Take Dorner himself. When he was holed up in the cabin prior to being charged - let alone convicted - it's not much of a stretch to imagine they might have attacked the cabin with weaponized drones if they had them, considering they'd already opened fire on innocent civilians during the manhunt.

If you had told me ten years ago that we'd have re-authorized the Patriot Act twice, once in 2005 under Republicans and again in 2010 under Democrats, I would not have believed it then. I also would not have believed we'd ever have tolerated warrantless wiretaps, government agents groping innocent passengers at airports, an increasingly militarized police force, and so on.

Paul is trying to provoke people into thinking about what our various governments are doing.

Hagar said... What is wrong with the examples cited above of past president's or administration's actions is that they were done openly.

The drone attacks are done from a secret list of people to be assassinated whenever opportunity offers, and we do not even know who is making up that list, much less exactly who are on it or why

That is exactly right. This President has proven his disregard for the Constitution on so many other fronts that he can not be trusted with the lives of American Citizens. Youcan easily see him authorizing drone attacks on people he doesn't like that have nothing to do with the war on terror.

Hell it could be a guitar company or some dude that makes a video that the ragheads find offensive.

Obama and his administration has proven with "Fast and Furious" and Benghazi that he is not to be trusted with the safety of American citizens.

There are no checks and balances. The press is compliant and the judiciary will not stand up to fictions where they can a penalty a "tax." Congress will not even pass a budget let alone scrutinize the murder of American Citizens.

We have to start somewhere.

How about signing on to the fact that American citizens who are not directly engaging in an act of terror will not be murdered by a drone on American soil?

Why can't this Administration sign on to that in a clear and convincing manner?

"Charged with a crime" might be the first step and entirely inadequate, and maybe he ought to have said "convicted", but while his statement isn't legally adequate, it is adequate as political short-hand, I think.

I believe Paul specifically cites the 5th Ammendment. So he's got the short hand and he's got the cite to the full text:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1]

Steyn's essential point in that article is about how we utterly refuse to engage opponents on an ideological level, but find it quite easy to reduce them to Yemeni "take-out".

"For a war without strategic purpose, a drone’ll do. Anwar al-Awlaki, an American citizen born in New Mexico, was whacked by a Predator not on a battlefield but after an apparently convivial lunch at a favorite Yemeni restaurant. Two weeks later, al-Awlaki’s son Abdulrahman was dining on the terrace of another local eatery when the CIA served him the old Hellfire Special and he wound up splattered all over the patio. Abdulrahman was 16, and born in Denver. As I understand it, the Supreme Court has ruled that American minors, convicted of the most heinous crimes, cannot be executed."

Where does "posse comatatus come into a president's powers to order domestic military strikes? Dows it matter if it's the Dept. of Commerce (as an example) actually pulling the trigger with a military weapon?

Perhaps the President should stick to "clear and present danger" or some other well-received standard, eh?

Synova (quoting Mark Steyn wrote)Two weeks later, al-Awlaki’s son Abdulrahman was dining on the terrace of another local eatery when the CIA served him the old Hellfire Special and he wound up splattered all over the patio. Abdulrahman was 16, and born in Denver. As I understand it, the Supreme Court has ruled that American minors, convicted of the most heinous crimes, cannot be executed."

Except we're not talking about civilian society. A war is not a court of law nor is it bound by rules that would be upheld in a court of law.

And an execution in a court proceeding is different than being killed on a battlefield or in a war zone. If a sniper for example has a target in his scope does he need to make sure that his target is found innocent in a court of law, is the right age etc?

War is different. I can see STeyn making this point by making Obama live by his own rules. But Steyn,I believe is only pointing out the inconsistency of Obama's (and the lefts) position, not on drone strikes agianst Al Qaeda in general (last I read, he's for them).

Didn't Paul state his full case (charged, tried, & found guilty) in his filibuster? Perhaps there was something in the Administration's response to his filibuster that shaped the op ed for strategic reasons? Many of these pieces are ghost written by 'op ed professionals' attuned to the catch phrases needed to engage specific audiences on behalf of the politician, who may (or staff may) then edit.

(The op ed pro, or his firm, also has the contacts and experience to negotiate with newspaper editors for timing and placement.)

Constitution. What a thing. If you believe you got a Constitution it'll pester you to death. But if you don't believe you got one, what could it do t'ya? Makes me sick, all this talking and fussing about the Constitution.

You know, the worst ain't so bad when it finally happens. Not half as bad as you figure it'll be before it's happened

Fred C. Dobbs: Why am I elected to go to the village? Why me instead of you and Curtin? Oh, don't think I don't see through that. You two've thrown in against me. The two days I'd be gone would give you plenty of time to discover where my goods are, wouldn't it? Howard: If you feel along those lines, why don't you take your goods with you? Fred C. Dobbs: And run the risk of having them taken from me by drones? Howard: If you was to run into drones, you'd be out of luck anyway. They'd kill you for the shoes on your feet. Fred C. Dobbs: Oh, so that's it. Everything's clear now. You're hoping drones will get me. That would save you a lot of trouble, wouldn't it? And your consciences wouldn't bother you none, neither

"Except we're not talking about civilian society. A war is not a court of law nor is it bound by rules that would be upheld in a court of law."

Jr., Steyn brought up those two because they were both American citizens. The case of "war" or not is a bit blurred. They weren't on a battlefield. Far from it. They were American citizens. The only clear issue is that it wasn't on US soil.

We'd like to think that being a US citizen gives us our 5th Am. rights to due process.

My opinion is that a drone strike on a US citizen, even overseas, ought to involve a trial and capital conviction before it is attempted. And as Steyn pointed out... the boy was 16, legally a minor, and not subject to a death sentence.

Someone could argue (and they do) that using drones for what are essentially assassinations, bombing enemy leaders when they are someplace other than "in theater", is wrong.

I would say it's troubling, even if "on the table." We should be careful what we do, and extra careful when it seems easy.

A targeted killing of a US citizen while he's having lunch at a cafe, even not on US soil, is simply wrong, because due process is the right of a citizen.

I'm actually not particularly worried about drones for surveillance in the US, because surveillance is the normal sort of thing that the police get to do.

I'm far more worried about everyone having a SWAT team. Steyn mentions that the Department of Education has a SWAT team. The government organization for Retired Pullman Porters (yeah, I know... either the world if far more strange than I ever imagined or Steyn is on drugs) has a SWAT team.

Soon, it seems, the Department of Education could have an armed drone force.

And as Steyn points out... the world we live in is one where our domestic military apparatus (ATF, FBI, etc) mobilized in a military fashion over Waco and Ruby Ridge. And that was BEFORE every civil organization and rinky-dink police force had its own commandos.

"If I had confidence that the Obama administration was competent, I'd feel more comfortable about their exercising high-tech powers of life and death over Americans (or others)."

Oh, really? You'd be happier having a more efficient and capable group of people wielding the power of life and death over you and everyone else, a power not checked by Congressional review or oversight, not bound by Constitutional guarantees of due process of law, not ratified by a conviction at trial after presentation of evidence to and the rendering of a verdict by a jury?

Robert Cook said..."If I had confidence that the Obama administration was competent, I'd feel more comfortable about their exercising high-tech powers of life and death over Americans (or others)."

Oh, really? You'd be happier having a more efficient and capable group of people wielding the power of life and death over you and everyone else, a power not checked by Congressional review or oversight, not bound by Constitutional guarantees of due process of law, not ratified by a conviction at trial after presentation of evidence to and the rendering of a verdict by a jury?

Really?

Whoa!Comrade Bob finds his balls.

Now if only he held the rest of the Bill of Rights in such high regard.